President’s Column: When a public records request is denied…

Idaho Gov. Butch Otter surprised many in April when he signed an executive order creating an Idaho public records ombudsman’s office under his office – something many of us in the media had long been discussing and hoping to accomplish in Idaho.

Initially, the ombudsman, Otter’s associate counsel Cally Younger, will be charged with collecting information and compiling concerns and complaints about state agencies’ compliance with Idaho laws requiring disclosure of public records, and working with the governor, stakeholders and the public to come up with improvements to Idaho’s system.

“What we’re announcing today is the beginning of a process for the establishment of a consistent program for either denying or accepting public records requests,” Otter said. “Before now, the only remedy for somebody being denied a public records request was going to court.”

Otter’s executive order doesn’t change that – that’s still the law. But the governor said his new ombudsman’s office, which he can create on his own by executive order, will lay the groundwork for making a case to the Legislature next year – with all stakeholders involved – on how to make the process better.

“In the next six or seven months, we’re going to amass this information,” Otter said. “I’m going to have to go to the Legislature and say we’ve got stuff in the statute that we can take out, or we’ve got additional stuff that we should put into the statute.”

Otter said, “What I envision is Cally saying to an agency, ‘You are without statutory or legal grounds to deny this.’ That’s what I envision.”

Establishing such an office under the Idaho Attorney General’s office, which already advises state agencies on public records law issues, has been discussed for years, but hasn’t happened due to lack of funding. Otter said he’s not seeking any additional funding at this point. “Cally’s already on staff and she’s a very industrious employee, works very hard,” he said.

But funding could be requested in the future. And the idea is for a more sweeping effort; Otter’s ombudsman can only deal with executive branch agencies that fall under his purview, not agencies that fall under other state elected officials or local government agencies. All clearly need addressing.

The Newspaper Association of Idaho pushed for the ombudsman, who originally was envisioned as having more sweeping powers – being able to tell an agency it was improperly denying access to a record, and getting the agency to reverse the decision. But a last-minute consultation with the Attorney General’s office turned up conflicts between that approach and current law.

That’s why new legislation is in the works. At the governor’s request, I have been working with the new ombudsman on an extensive survey to state agencies that fall under the governor, to ascertain how they’re handling public records requests now and what could be improved. The data from that survey should help point the way to improvements as part of new legislation next year.

We already have a meeting scheduled in August, organized by Younger, to begin looking into legislation.

Later in the spring, I was contacted by an Idaho reporter who was struggling to appeal the denial of a public records request on her own, as her news organization wasn’t hiring a lawyer. She wondered if there was a standard form she could use. I looked into it, and there are several standard forms for various types of legal action, mostly in family law, on the Idaho Supreme Court’s website, but nothing in this area. So I made a proposal to the Idaho Supreme Court’s Media/Courts Committee to have the courts work one up and post it; Younger was interested in participating.

Lawyers on the Media/Courts Committee – including one who represents my own newspaper – responded with some information that was surprising to me. A corporation – like, say, a newspaper – can’t file a court action to appeal a public records denial without being represented by an attorney. And if an individual – like, say, the reporter – were to file it on her own, she’d be risking having the other side’s attorney fees assessed against her personally if she lost. Clearly, we need changes in the law to address this. Our current public records law makes filing an action in court the sole remedy for a public records denial. If that essentially requires hiring an attorney, it’s financially out of reach for many journalists and members of the public. We need an intermediate step that’s quick, easy and inexpensive.

That’s what we’re looking for with the new legislation; I’m so glad it’s in the works!

Betsy Russell is a Boise-based reporter for The Spokesman-Review, and is the president of the Idaho Press Club.